The law protects workers against detrimental treatment for taking part in the activities of independent trade unions – but such activities have long been interpreted as not including strikes or other forms of industrial action. That legal position has, however, been fundamentally changed by a landmark ruling (Mercer v Alternative Future Group Ltd and Another).

The case concerned a support worker employed by a health and social care charity who acted as workplace representative for a trade union. A series of strikes were called after a dispute developed in respect of payments for sleep-in shifts. She took part in planning and organising strikes and participated in media interviews.

She was suspended by her employer, who said that she had twice abandoned her shift without permission, presumably to take part in strike action. She was also said to have spoken to the press without authority. She launched Employment Tribunal (ET) proceedings, asserting that her suspension amounted to detrimental treatment on account of her trade union activities, contrary to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The employer resisted her claim on the basis that her suspension was unrelated to any trade union activities and, following a preliminary hearing, the ET dismissed her claim insofar as it was based on her participation in industrial action. In doing so, it noted that the scope of trade union activities encompassed by Section 146 had in the past been interpreted as not including industrial action.

The ET ruled that the failure to confer statutory protection against detriment for participating in industrial action amounted to an infringement of Article 11 of the European Convention on Human Rights, which enshrines the right to freedom of peaceful assembly and association. However, it went on to find that it was not possible to interpret Section 146 in a manner that would achieve compliance with Article 11.

Upholding the worker’s challenge to that decision, the Employment Appeal Tribunal (EAT) ruled that to permit disciplinary action to be taken against workers simply for exercising their right to strike would disproportionately interfere with their Article 11 rights. To interpret Section 146 in a way that avoided such interference was possible and would strike a fair balance between the right of workers to engage in trade union activities and the interests of employers and society as a whole.

Extending the protection afforded by Section 146 to industrial action did not go against the grain of the legislation. Adopting such an interpretation did not involve the EAT in making policy choices or in taking on an inappropriate legislative role. It simply gave effect to the clear and unambiguous obligation under Article 11 to ensure that workers are not deterred, by the imposition of detriments, from exercising their right to participate in strike action.